concurring and dissenting:
I concur in parts I, II, and III of the majority opinion, but dissent with respect to the majority’s holding that the statutory damages cap is constitutional under the Utah Constitution.
The Court holds that there is no “fundamental right” to recover damages from government entities performing governmental functions and therefore a heightened standard of scrutiny is not applicable for determining the constitutionality of Utah Code Ann. § 63-30-34(1), which limits recovery for personal injuries against a government entity to $250,000. On that basis, the majority holds that § 63-30-34(1) does not violate Article I, section 24 of the Utah Constitution. While I agree that Article I, section 11 does not guarantee a right to sue the state when it performs a governmental function, Article I, section 24 still applies, and the least restrictive standard of judicial scrutiny governs the determination of whether the cap on damages is constitutional.
Article I, section 24 of the Utah Constitution states, “All laws of a general nature shall have uniform operation.” The principle that “persons similarly situated should be treated similarly, and persons in different circumstances should not be treated as if their circumstances were the same,” Malan v. Lewis, 693 P.2d 661, 699 (Utah 1984), is so fundamental to Utah law that Article I, section 2 of the Utah Constitution declares that an integral purpose of á free government is to ensure the equal protection of the law to the people.
The test for determining whether “laws of a general nature ... have uniform application” is twofold. “First, a law must apply equally to all persons within a class. Second, the statutory classifications and the different treatment given the classes must be based on differences that have a reasonable tendency to further the objectives of the statute.” Id. at 670 (citations omitted). Whether a law operates uniformly under Article I, section 24 is a judicial question. See id. at 671.
The damages cap applies only to lawsuits against the government, not to lawsuits *49against any other defendant, whether a person, a corporation, or another entity. For legal purposes, persons injured by the negligence of another are indistinguishable and constitute but one class. Because the damages cap applies only to persons injured by the state, the cap operates in a nonuniform or discriminatory fashion. Condemarin v. University Hasp., 775 P.2d 348 passim (Utah 1989).
As stated, the right to sue the state when it performs a governmental function, as constitutionally defined, does not implicate a right protected by the open courts provision of Article I, section 11. See Madsen v. Borthick, 658 P.2d 627, 629 (Utah 1983); Condemarin v. University Hasp., 775 P.2d 348 passim (Utah 1989). Thus, although a heightened scrutiny standard of judicial analysis does not govern the Article I, section 24 analysis, the rational basis standard of scrutiny does. See generally Greenwood v. City of North Salt Lake, 817 P.2d 816, 821 (Utah 1991); Mountain Fuel Supply Co. v. Salt Lake City Corp., 752 P.2d 884, 887-88 (Utah 1988); J.J.N.P. Co. v. State, 655 P.2d 1133, 1137 (Utah 1982). That standard, although broad and permissive, is not so flaccid that it requires the court to sustain all discrimina-tions, no matter how invidious. Indeed, this Court has held statutes violative of Article I, section 24 under a rational basis test on a number of occasions. See, e.g., State Tax Comm’n v. Department of Fin., 576 P.2d 1297, 1299 (Utah 1978); Weber Basin Home Builders Ass’n v. Roy City, 26 Utah 2d 215, 219, 487 P.2d 866, 869 (1971); Dodge Town, Inc. v. Romney, 25 Utah 2d 267, 269, 480 P.2d 461, 462 (1971); Gronlund v. Salt Lake City, 113 Utah 284, 292-93, 194 P.2d 464, 468 (1948).
In my view, the cap on damages constitutes an invidious discrimination that violates Article I, section 24. The statute discriminates in two ways: First, as to those injured by negligence, it discriminates against those injured by the state; second, as to those negligently injured by the state, it discriminates between those who are seriously injured and those who are not. Those who are seriously injured may not fully recover, while those who are not seriously injured may.
. I submit that the damages cap cannot properly be justified on the ground that it protects the state treasury from potential liabilities that might threaten the delivery of government services. Although the state clearly has the right, and even a duty, to protect itself from such liabilities, and although the damages cap is designed to further that goal, it does so in such a marginal way as to be unreasonable. Certainly one can kill a gnat with a sledgehammer, but that does not make a sledgehammer a reasonable means of killing gnats. The state has many other reasonable ways to protect the treasury from an unduly burdensome drain on it. The discriminatory classification imposed by the damages cap unreasonably produces harsh results with respect to a few people. That consequence of the statute is the antithesis of equal protection of the law.
All persons and private organizations in this state are liable for damages when they negligently injure others, and they too could argue that assuming financial responsibility for the injuries they cause threatens their viability. Nevertheless, individuals and private organizations find ways to handle the costs of their negligence. I fail to see why the state cannot do the same. The state can protect itself through means that would cost little or nothing more than that required of all other persons and organizations. The state’s arguments to the contrary have little weight in light of UDOT’s requirement that those with whom it contracts must procure liability insurance. In this case, the contractor had six million dollars of liability coverage. If private contractors can assume the cost of such insurance, surely the state can. There is no basis for assuming that if the state were to pay full damages to those few individuals who are seriously injured by its negligent maintenance or construction of public roads, the state’s solvency would be threatened or that it would be unable to provide important governmental services.
In her opinion in Condemarin v. University Hospital, 775 P.2d 348 (Utah 1989), Justice Durham pointed to the injustice of placing the entire burden of protecting the public treasury on a few individuals who suffer seri*50ous injuries at the hands of state negligence. She quoted from the dissenting opinion in Fein v. Permanente Medical Group, 38 Cal.3d 137, 211 Cal.Rptr. 368, 388, 695 P.2d 665, 684 (1985) (en banc), which upheld a damages cap on noneconomic damages for medical malpractice. In that ease, Chief Justice Bird of the California Supreme Court observed:
“Millions of healthcare consumers stand to gain from whatever savings the limit produces. Yet, the entire burden of paying for this benefit is concentrated on a handful of badly injured victims — fewer than 15 in the year MICRA was enacted. Although the Legislature normally enjoys wide latitude in distributing the burdens of personal injuries, the singling out of such a minuscule and vulnerable group violates even the most undemanding standard of underinclusiveness. ”
Condemarin, 775 P.2d at 355 (citations omitted) (emphasis added) (quoting Fein, 695 P.2d at 691-92 (Bird, C.J., dissenting)).
The Court’s holding that the damages cap does not unconstitutionally discriminate cannot be justified on the ground that if the Legislature bestows a privilege it is not obligated to bestow — in this case the statutory right to sue the state — the Legislature may impose any limitation or condition it chooses on the exercise of that privilege. That notion seems to underlie the majority’s statement that “[ujnder our statutory scheme, the legislature actually created, rather than abrogated, a limited right of recovery against the state for negligent maintenance of its roadways.”
Even if the Legislature can withhold the privilege or right to sue the state without infringing on the constitution, the Legislature cannot grant that privilege on any condition that it wishes to impose. The majority’s proposition to the contrary violates the fundamental principle that our government is limited in the exercise of its powers by those rights and limitations embedded in our Constitution. If the Legislature may impose any condition it chooses on a “privilege” that it may grant or deny, such as business licenses, leases of state land, etc., then it could allow men to recover full damages from the state for injuries arising out of negligent maintenance of the public highways, but allow women to recover only part of the damages they suffer. The Legislature could also grant residents of only some counties the right to a full recovery and deny that right to residents of other counties; and it could discriminate in granting a right to damages for injuries negligently caused by the state on the basis of a plaintiffs age, ancestry, or employment.
The damages cap in this case invidiously discriminates against a few individuals who suffer devastating injuries. The proposition that the state’s ability to finance necessary or important functions would be jeopardized by allowing full recovery does not justify the discrimination. The state has a number of other means for protecting the treasury that do not require a few seriously injured persons to bear that entire financial burden.
DURHAM, J., concurs in the concurring and dissenting opinion of STEWART, J.